The intersection of criminal law and immigration law

Report: crImmigration enforcement funding and prison rates rise

A report by the Congressional Research Service tells of increased funding for the federal government’s programs targeting immigrants convicted of crimes, including immigration-related crimes, and an accompanying increase in the number of immigrants arrested and imprisoned. Marc R. Rosenblum & William A. Kandel, Congressional Research Service, Interior Immigration Enforcement: Programs Targeting Criminal Aliens (Oct. 21, 2011). The CRS is a non-partisan unit of the Library of Congress.

Between fiscal year 2004 and FY 2001, the report explained, funding for programs targeting so-called “criminal aliens” skyrocketed along with a corresponding increase in arrest and imprisonment rates. “Congress appropriated a total of about $690 million for these four programs [the Criminal Alien Program, Secure Communities, § 287 agreements , and the National Fugitive Operations Program] in FY2011, up from $23 million in FY2004. At the same time, the number of aliens arrested through programs targeting criminal aliens increased from about 11,000 to over 289,000.” Rosenblum & Kandel at 1.

As used in the report, “criminal alien” refers to “any noncitizen who has ever been convicted of a crime in the United States.” Rosenblum & Kandel at 2. This definition includes individuals who are not placed in removal proceedings on the basis of a criminal conviction. Rosenblum & Kandel at 2. Indeed, it includes individuals whose criminal conviction does not render them removable.

Most of the noncitizens arrested between 2001 and 2009, the report went on, were for illegal entry and “virtually all” of the increase in the percentage of the total number of federal arrests in this period was due to illegal entry. Rosenblum & Kandel at 4. As an example, in 2001, 41,499 noncitizens were arrested on federal charges constituting 35 percent of the total number of persons arrested that year on federal charges. In comparison, in 2009, 84,640 noncitizens were arrested on federal charges constituting 46 percent of the total number arrested. Rosenblum & Kandel at 4.

Not surprisingly given these arrest data, “immigration crimes grew as a proportion of total federal offenses for which they [noncitizens] received sentences, increasing from 47.3% of all crimes in 2001 to 68.2% by 2009.” Rosenblum & Kandel at 8. In contrast, only 0.4 percent of noncitizens convicted of a federal crime in 2009 were convicted of a violent offense and 31.4 percent were convicted of nonviolent crimes. Rosenblum & Kandel at 8 tbl.3.

To be clear, this does not suggest that more noncitizens are committing immigration crimes. It is possible that “[t]hese trends reflect changes in enforcement and prosecution policies rather than increased noncitizen criminality.” Rosenblum & Kandel at 5.

Incarceration data also shows an upward trajectory in the last decade. While in 2001 there were 129,214 noncitizens incarcerated in federal or state prisons or local jails constituting 6.4 percent of the total incarcerated population, the absolute number of incarcerated noncitizens in 2009 was 172,766 (7.2 percent of the total). Rosenblum & Kandel at 7 tbl.2. This growth was spurred by a substantial increase in the noncitizen population of local jails. Rosenblum & Kandel at 6.

None of this is surprising given the significant funding given to immigration policing programs in recent years. While the Criminal Alien Program, Secure Communities, § 287(g) agreements, and the National Fugitive Operations Program received $23.4 million in FY 2004, those programs received $199.9 million in FY 2006, $641.1 million in FY 2008, and $690.2 in FY 2011. Rosenblum & Kandel at 22 tbl.5.

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